Seanad Éireann debate -
Thursday, 14 Jul 1949

Vol. 36 No. 19

Criminal Justice Bill, 1949—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (General MacEoin)

As Senators have in their hands the explanatory memorandum which was circulated with the Bill they will be aware that the object of the Bill is to improve the administration of criminal justice. Most of its provisions are of a technical character designed to provide remedies for defects that experience has brought to light. I propose to confine what I have to say at this stage to some remarks of a more general character.

By common consent, the experiment, introduced by the Courts of Justice Act, 1924, of a court of summary jurisdiction manned by judges with the necessary legal qualifications and experience, has proved an unqualified success. It is fitting that I should avail myself of this opportunity to pay a well-deserved tribute to the district justices and their clerks who have contributed so much to the success of this experiment and I hope that it will not be thought invidious of me if I single out for special mention the pioneers amongst both justices and clerks who set the precedents and established the standards which have earned for the District Court as a whole the confidence and respect of the people. It is in a sense, a measure of the success that has attended the working of the District Court that it is possible now to contemplate, as does this Bill, an important extension of the court's criminal jurisdiction. For a long time it has been felt that the District Court's jurisdiction on the criminal side could be safely and usefully extended. Such an extension, by enabling cases to be disposed of summarily in the District Court which otherwise would have to be sent for trial before judge and jury after depositions had been taken, might be expected to result in an appreciable saving of time and money and in a substantial measure of relief for witnesses and jurors, while from the point of view of accused persons protracted delays in the disposal of cases would be eliminated and speedier trials ensured.

I do not intend to enter into the details of the proposed enlargement of the court's jurisdiction. These are dealt with fully in paragraph 20 of the explanatory memorandum. Speaking generally, however, I may say that, so far as the summary trial of indictable offences is concerned, the powers of the court are being extended by Section 1 of the Bill in two ways, firstly, by adding specific offences (for example, perjury, forgery, conversion, and so on) to the list of indictable offences that are at present triable summarily and, secondly, by increasing the property value limits in cases of larceny and of malicious damage to property. The very considerable fall in the value of money is, of itself, a sufficient justification for such an increase.

I want to stress the fact that the power of the District Court to deal summarily with indictable offences will continue to be subject to two conditions, namely,

(a) that the offence must be in the nature of a minor offence, and

(b) that the accused does not object to a summary trial.

These provisions are in conformity with the provisions of the Constitution which guarantee the right to trial by jury except for minor offences.

Power is being taken in Section 1 to enable the Minister for Justice to prescribe further indictable offences as offences that may be tried summarily in accordance with the provisions of the section. But an order made by the Minister in exercise of this power must be approved by both Houses of the Oireachtas before it can come into force.

Section 2 of the Bill aims at expediting and shortening the proceedings, to the advantage of all concerned, in those cases in which the accused wishes to plead guilty. At present, in the type of case in question, although the accused may, at all material times, be prepared to plead guilty, the full procedure must be followed of taking the depositions from all the witnesses who may be required at the trial. The accused is then sent forward for trial and may be kept waiting for months before his case can be disposed of and, notwithstanding his admission of guilt, the depositions have to be copied and the State has to instruct counsel and to ensure that all the necessary witnesses are available in case the accused should change his mind at the last moment and withdraw his plea of guilty. To save the waste of time and money which this procedure involves, and at the same time secure a speedier trial for the accused, is a manifest advantage if this object can be achieved without the risk of infringing the Constitutional and traditional rights of accused persons. I think that Senators will agree that the safeguards provided in the section are adequate to protect these rights.

The provisions of the section are self-explanatory and do not call for detailed comment; but perhaps two observations are called for. The powers of the District Court under the section do not extend to the more serious crimes of murder, treason or piracy or their cognates. It would obviously be inappropriate and undesirable to vest the District Court with the power to deal summarily with such serious crimes, or even to apply, the alternative procedure provided for in the section, of allowing the accused to sign a plea of guilty and thereupon sending him forward for trial without taking any depositions. As regards the provision of the section which vests a discretion in the District Court, either to deal with the case summarily or to send it forward for trial without depositions or with such depositions as may have been taken up to the time at which the accused signs the plea of guilty, it is contemplated that the district justice, in determining which course to adopt, would, apart from any other relevant considerations, have regard to the adequacy or otherwise of the punishment which he was permitted by law to impose for the offence. If he thought that the maximum punishment which he could order would be inadequate, he would doubtless send the accused forward to the Circuit Court, which would have the power to impose a heavier sentence. The Justice's discretion is not wholly unfettered, however, because, if the Attorney-General objects, he cannot deal with the case summarily. This is thought to be a desirable safeguard, but it is to be noted that while the Attorney-General can object to, he cannot insist upon, a summary trial.

This brings me to Section 3, which provides for the punishment by the District Court of offences dealt with summarily under Section 1 or 2. In view of the increased powers being given to the court to deal summarily with a wider range and more serious types of cases, it is necessary to give the court the power to impose correspondingly greater punishment. Six months' imprisonment is the maximum sentence that the District Court may impose at present (unless it imposes consecutive sentences for two or more offences), while the court has no general power to inflict a monetary penalty. Under Section 3, the court will have power to impose a fine of up to £50 or imprisonment up to 12 months, or both fine and imprisonment.

As Senators will have gathered, one of the primary objects of Sections 1 and 2 of the Bill is to reduce the amount of time that has to be spent in the District Court on the preliminary investigation of indictable offences by, on the one hand, extending as far as possible the range of cases that may be disposed of summarily and, on the other hand, enabling cases to be sent forward for trial at the earliest possible stage, once the accused is prepared to plead guilty. It is only right that, in this connection, I should tell the House that we considered very carefully whether any other measures which might be expected to help towards achieving the same object were feasible and desirable. I might mention, for example, such suggestions as the returning of a person for trial on the establishment merely of a prima facie case against him and notwithstanding that all the depositions had not been taken or, where there was a multiplicity of charges, returning the accused for trial on one or two charges and preferring the remainder on indictment, although depositions had not been taken in regard to them. Such suggestions would involve a more or less radical departure from the existing procedure for the preliminary investigation and trial of indictable charges and would not, it was felt, on the whole, be in the best interests of the administration of justice.

The remaining provisions of the Bill are, as I mentioned at the outset, of a technical character and the House will, I think, agree that they can be more conveniently and appropriately dealt with in detail on Committee Stage. If, however, there are any points which Senators may desire to raise on any of these provisions, I shall endeavour to deal with them when replying or shall give them consideration between now and the Committee Stage.

Mr. Hawkins

I agree with the concluding statement of the Minister, that this is a Bill of a highly technical nature and would more appropriately be dealt with on the Second Stage by setting up a special committee of the House to deal with it, as we have done in connection with other Bills. In the meantime, there are one or two points I would like to mention.

I have given expression to the point of view already, that we considered it advisable to have an extension of the jurisdiction of the district justices. We will admit that, on the whole, the district justices throughout the country have earned for themselves and for their court the respect and admiration of the entire community. In a very few cases sometimes justices have given way to what one might call rash statements, unnecessary statements, and criticisms which would be better left unsaid, in the interest of the carriage of justice in the first place and the carrying forward of respect for the court and for themselves in many other cases.

There is another question that arises from the Bill, that is, in giving over to the district justices, at this stage, functions that have not been allocated to them in their original appointment, as to whether many of them have that training essential to the carrying out of the extra duties in a fit and effective manner. Another question is that of the provision of proper facilities. We have seen, from time to time, complaints published, in the Press and elsewhere, as to the conditions under which justice has to be administered, particularly in courthouses in rural areas.

Another point is whether under this Bill, the powers of the Attorney-General are being widened and extended. Again I say that these are matters that would probably be more appropriately dealt with on the Committee Stage or if the House proposed to set up a special committee to examine them, I think we would be perfectly agreeable to that course.

Mr. Douglas

I agree that this is essentially a committee Bill. There is something to be said for the setting up of a committee to deal with it, but I think it would be better to discuss it in a Committee of the House early in the autumn. My reason for that is that while to some extent the Bill is one for experts, there are a very large number of matters in which the ordinary common sense and experience of the public might be very important. I would like to ask the Press generally to give publicity to the fact that this is not a Party Bill in any sense of the word but is introduced here in order that it might get full consideration, and I know that I am correct in stating that Senators on all sides of the House would welcome comments from experienced members of the public including barristers and solicitors, and others interested in this matter.

Therefore, it seems to me that the public generally should be urged to get this Bill and read it. I gathered from the whole tone of the Minister that while this Bill could be regarded as a technical measure, it is one of such very wide interest for the public generally that it is one in which views will be considered. If this Bill is considered by a Committee of the House, which I favour, and we then find that there are technical matters that should be referred to a committee, it would still be possible to appoint a special committee to deal with some sections of it. This Bill is being introduced now with at least two months in which interested members of the public can read it, which provides a very valuable way of examining and passing legislation on these matters. I hope the Press will give publicity to that fact and to the fact that comments on the measure will be welcomed and would be very helpful.

Mr. D. Burke

This seems to me a very useful piece of legislation which I am informed will simplify the work of District Courts and also the work on the criminal side. I am further informed that it will reduce congestion in the criminal business of the Circuit Court. It gives the district justice power to deal, with the sanction of the Attorney-General, with indictable offences where the accused pleads guilty. That involves great responsibility on the Attorney-General and is a provision which might be open to abuse. In cases where an accused pleads guilty the district justice would not go into the facts very closely when he had not the necessity of sending the accused forward to the Circuit Court. The result might be then that a person charged with a serious offence could, without much publicity, get off lightly.

Section 2 will simplify matters and save a great deal of unnecessary work in many cases but at the same time it seems to have the effect of giving a wide discretion to the Attorney-General which might not be altogether desirable. These are some observations which friends have given me on the matter of this Bill. In view of the way the Minister has spoken in introducing it and the manner in which it has been met by the Senators who have spoken, I do think it would be desirable that some select committee should be set up to deal with the matter and that the Press would give the publicity that Senator Douglas has asked and that those interested in those matters would put forward their views so as to make this as desirable a piece of legislation as we all would wish it to be.

Professor Stanford

I would ask the House to look at Section 15 of the Bill which says that in any criminal proceedings, the court may, if it is deemed in the interest of the accused or public morality, do certain things. Under section (a) it may provide for the hearing of a case in camera. That, I understand, is a matter of common law but section (b) makes for the prohibition of the publication of certain portions of the proceedings if the court considers it to be in the interest of the accused or of public morality. That, I have been authoritatively informed, is a fresh power. If that is not so, I will sit down and speak no more. I would like, however, the Minister to say if this is conferring a new power on the District Court or the other courts.

General MacEoin

There may be some slight extension of an existing power. It is qualifying a power that already exists.

Professor Stanford

Can a District Court act on this section at the moment, and if so, what is the point of putting it in now?

General MacEoin

It does confer a new power to the extent that it empowers the court to prohibit the publication of certain things in newspapers if considered contrary to public morality.

Professor Stanford

Did they have that power before or not?

General MacEoin

They did not.

Professor Stanford

Do the higher courts have that power at present?

General MacEoin

I doubt it.

Professor Stanford

Then that is conferring greater powers on District Courts and creates an entirely new situation. I must then criticise this section.

It seems to me that this power, if improperly used, could lead to the equivalent of star-chamber courts. Secret courts, like secret police, deservedly have a bad name in this country and elsewhere. I know that we should not offer any disrespect towards our judiciary. Lord Acton has warned us that all power tends to corrupt, that absolute power corrupts absolutely. I think the right to publish details is a most valuable safeguard for our civil liberties. It may be argued that once the right of trial in camera is conceded there is no reason for granting right of publication, because that would be impossible. That is not so. If a trial is held in camera persons who were allowed to attend the court, the plaintiff, the defendant and so on, are at perfect liberty to tell the first Pressmen they speak to what they thought of the trial. If these powers are conferred that most important right may be lost. In this country especially, the freedom of the Press must be preserved as far as we can do so.

It may be argued against my plea for freedom of publication, that it was found necessary in Britain in 1926 to prohibit reports of divorce proceedings. It may be asked, why not get similar powers here? The position is not the same. We all know that Irish newspapers differ very considerably from notorious English newspapers. In England the problem of free publication was grossly abused. Irish newspapers have never lowered their standard to that extent. In fact, I hold that we have been shown that we can trust them to observe decency.

I speak after careful consideration on this point. While many citizens admit the need for some censorship, they feel that we have far too much censorship in this country. We have a very active Board of Censors, as well as thousands of unofficial censors in libraries and bookshops, keeping out books that they claim are below them but are generally beyond them. Let me prove that by referring to a letter in this day's newspapers from the Secretary of the Censorship of Publications Board in reply to one by a former member of the board. The secretary refers to one of the greatest masterpieces of modern times, Joyce's Ulysses——

Mr. Hearne

On a point of order, I do not think on this Bill this House should be used as a sounding-board on censorship.

Professor Stanford

Does the Chair agree?

An Cathaoirleach

Yes.

Professor Stanford

In that case may I draw the attention of the House to Article 34 (1) of the Constitution of Ireland? It reads:

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and save on such special and limited cases as may be prescribed by law, shall be administered in public."

I insist that the intention was the right and propriety to administer law in public as far as possible, save in specially limited cases. It may be argued, and I shall argue, that this section confers general powers or, at least, more general powers on the courts than that Article of the Constitution intended. In the Bill the courts would become the final authority for deciding whether public morality was involved or not. In England, for example, by contrast these powers, are, as far as I know, limited to divorce courts. If a similar limitation were introduced here it would be perfectly constitutional.

With all deference to the legal luminaries in the House I suggest that it might be an infringement of the Constitution to give these more general powers, especially to District Courts. I emphasise that, because in some cases a district justice may be in a hurry, he may be tired, or may suffer from some of the other failings to which human flesh is prone, and might wrongfully exercise this right to exclude publication. District justices are more subject to local pressure than judges in the High Court. They might have pressure put upon them to use this power. I am quite prepared to be refuted by the Attorney-General, but I feel that there is a danger in this clause and I ask for enlightenment upon it.

Mr. Lavery

This Bill has been approached generally by the Seanad in the only possible way. It is not a single Bill but a collection, more or less, of unrelated amendments to the criminal law which have been found by practice and experience to be necessary. There is no doubt that the administration of the criminal law in this country at present is subject to great delay, due to the formalism necessary in the discharge of such an important part of the work of the State. It is obvious that that cannot be avoided, and improvements can only be of a more or less limited character.

That there could be improvements I think will be admitted by all who have experience of the workings of the courts. A Bill of this kind has been in contemplation for something like ten or 15 years, and when the Minister projected the introduction of this measure, he intended, if possible, to introduce one much more comprehensive than this proves to be. It was found on examination of various matters that we thought required amendment and improvement, that difficulties of various kinds arose. In the end, when all the major proposals have been taken away, the Bill is comparatively minor in the effort it makes to improve the administration of criminal law. It does something, and that is all that can be said of it. It does some important things, but matters of major difficulty or that might be of major controversy, are untouched.

I think the principal reason that actuated the Minister in introducing this Bill was that it was better to do something in this generation, rather than wait for ten or 15 years, or perhaps indefinitely, to achieve perfection at some distant date in the future; that it was better to do something in our time, than to spend all our lives discussing what ought to be done and achieve nothing. Therefore, I think this Bill ought to be approached by trying to get it into Committee and to recommend it to the Dáil. Obviously, there must be close discussion of many of its provisions, because they are important. At the same time, speedy enactment would be in the interest of the administration of the law, and for that reason I suggest to the Seanad that the proposal that the matter should be dealt with by a Committee of the House, rather than to refer it to a Select Committee, is the better one. After all, this is not such a large Assembly. The proceedings of this House are not unduly formal and it should be possible to debate the particular provisions of this Bill adequately in a Committee of the whole House and make it possible to pass the Bill in whatever form finally was approved in a shorter space of time than if we sent it to a Select Committee from which it might emerge after a period of months or longer. Therefore, I think that that is the proposal the House should consider and, in my submission, should adopt.

Having said that about the Bill as a whole, there are, of course, points of varying importance to which certain Senators have adverted. They require consideration individually and, as has been said, it is scarcely appropriate to discuss them at all on the Second Reading. One thing that rather surprised me was that both Senator Hawkins and Senator Burke thought that there was something in the Bill to extend the powers of the Attorney-General. Senator Hawkins only referred to it asking whether it might be so, but Senator Burke apparently believes that certain parts of the Bill seek to confer great powers on the Attorney-General and great discretion. I confess that I was surprised because it had not occurred to me that the Bill proposed to give any important new functions to the Attorney-General. I gather that what Senator Burke has in mind is that in a case where the accused pleads guilty and the Attorney General consents, the District Court may deal with the case, but only within the limits as to penalties the District Court has, instead of sending forward the case for trial in the Circuit Court before a Circuit Court judge.

It will be seen, of course, that the only function the Attorney-General has in that matter is that if the accused pleads guilty the Attorney-General has the option of asking the court not to deal with the case but to sent it forward; but the district justice has also got the discretion, no matter what party thinks otherwise—if one may regard in a criminal case the Attorney-General as a party on the one side and the accused as a party on the other— as to whether he will deal with it now or send it forward. The Circuit Court has wider jurisdiction and may impose more severe penalties than the District Court, but the district justice having legal qualifications, should be thought fit to deal with the case when the accused wishes him to deal with it; the Attorney-General sees no objection to his doing so and the district justice himself feels that he may do so within the limit of imposing a sentence up to 12 months imprisonment. I do not think, therefore, that there is very much to be feared in vesting the Attorney-General with that particular power.

The only other specific matter that has been adverted to is clause 15 of the Bill on which Senator Professor Stanford has expressed certain doubts as to its constitutional character and as to its desirability. Perhaps it is not appropriate to deal with the matter in the clause in detail here, but speaking about it generally, it is undoubtedly a very important clause. Undoubtedly it is a matter upon which the Oireachtas, both this House and the Dáil, should greatly concern themselves. The question of the administration of justice in the public courts and the giving of proper publication to those proceedings is, of course a very important matter and must be carefully considered before it is in any way limited, but it must also be remembered that the primary consideration in dealing with courts must be the attainment of justice, the doing of justice between the parties. When a person finds himself charged with a criminal offence, he is presumed to be innocent; he has to face a very serious situation; the powers of the State have been invoked against him; his liberty may have been taken from him; he may appear as a person in custody to answer a charge of a serious kind. He requires, and ought to get from the State, proper protection to see that justice is done to him and that any other consideration, whether it be the freedom of the Press or the satisfaction of the community as to what is going on in the courts, important as those things may be, should be subordinate to the proper protection of his interests. That, I suppose, is a general proposition that would command assent. Certainly, I suppose it will be conceded on all sides that the interests of public morality ought to be safeguarded. That is an important thing in these days when newspapers are read by all, young and old, people of varying degrees of education and varying degrees of capacity. Whatever Senator Professor Stanford may think about the need or otherwise for the particular form of censorship that we have, in these days when liberty and perhaps licence is so prevalent, it is not unreasonable to demand some form of protection of that kind.

Professor Stanford

I said so.

Mr. Lavery

I said that I had no doubt that Senator Professor Stanford would accept that. In the proceedings in the public court very unpleasant and difficult matters must of necessity be inquired into, matters relating to the personal lives of individuals, matters of a kind which are not ordinarily considered proper for discussion or report in the public Press. Judges and practitioners in court have to do mighty unpleasant things and inquiries have to be conducted of a kind which are not fit for public consumption and which no person of ordinary standard of living or outlook would wish to read. If that is admitted, if these two ideas are admitted, that the protection of the interests of the accused is paramount and that the protection of public morality is a matter of importance, the next fundamental question we have to consider is who should be entrusted with securing these two important ideas. The issue, I suppose, arises that as far as the publication of proceedings in court is concerned, there are two categories of persons who have to be considered. One is the judge and the other is the editor of the paper. We all know that what Senator Professor Stanford has said about the standard of the Press in Ireland was justified. We all know that our Irish newspapers have observed a high standard of conduct in reporting or in not reporting, as the case may be, matters of the kind we are discussing here. But, giving newspaper proprietors, newspaper editors and newspaper men generally the highest credit which they certainly deserve, there surely remains the question of whether the editor of a newspaper or the judge who is charged with the trial of the case is better able to judge whether the protection of the interests of the accused and the interests of public morality will be safeguarded by the publication or not or by the hearing of the case in camera or the hearing in public.

That is really the choice. Is it better to leave it to the discretion of a judge or to leave it to the discretion of a newspaper editor? We can answer that, in the past, there has been no infringement of the ideas of the interests of the accused or of public morality, but I think it is not going too far to say that a judge is the more appropriate person to invest with this jurisdiction. Senator Stanford spoke, as people are sometimes inclined to speak, of judges being, if not venal, at any rate subject to influence. Such a thing is possible. I suppose newspaper editors may be subject to influence, too. It is possible that we may have in the future venal judges or judges who may yield to unworthy motives in exercising a jurisdiction given them, but this House cannot legislate on the basis that the judges will prove unworthy of their trust. Surely every organ of State in performing its functions must proceed on the assumption, well founded, it is to be hoped, that other organs of State and other functionaries will discharge their responsibilities properly also, so that we may or we ought to leave out of account any idea that judges will act improperly in the exercise of this jurisdiction which it is sought to give them.

Senator Stanford referred on more than one occasion to the District Court and it is, of course, true that these powers, if given, would be enjoyed by the District Court as well as by members of the higher judiciary. This particular section, however, is not peculiar to the District Court — it is general; and it is more likely, I suppose, that these functions would have to be exercised by Circuit judges, High Court judges and judges of the Supreme Court more often than by district justices. However that may be, it is true that district justices would have the power, if the clause became law.

The Senator also referred to Article 34 of the Constitution, with a view to raising in a tentative manner the constitutional nature of the provision. It must be borne in mind — it does not appear from the print of the Constitution which is now published and which no doubt Senator Stanford is using — that Article 34 (1), as he read it, has been brought into that particular form by amendment. As the Constitution was originally enacted, it provided simply that "justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and shall be administered in public". It was found that that provision was far too wide, because, if anything I have said up to the present is justified, it is quite clear that cases must arise where trial otherwise than in public is necessary for achieving the ends of justice, the protection of the interests of the accused, or the interests of public morality. The phrase "save in such special and limited cases as may be prescribed by law" was inserted in the Constitution by amendment within the period provided by the Constitution itself for amendment, and it was, I apprehend, put in precisely in order to make possible provisions of the very kind which we are dealing with here.

In passing, and in order that Senator Stanford and other Senators may consider the matter further before this Bill is dealt with in Committee. I might refer Senators to Article 40, Clause 6, paragraph 1, which is the Article in which the State guarantees liberty for the exercise of rights, subject to public order and morality. The first right guaranteed is the right of the citizens to express freely their convictions and opinions. As I am not arguing this in a court of law, I need not point out that it is limited to the expression of convictions and opinions and not to the report of matters of fact. The Article goes on to say:—

"The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the Press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law."

I do not say that that Article necessarily throws a great deal of light on the present matter, but I think it has to be taken into account, and I might observe that the Constitution takes pains to declare that the publication of blasphemous or indecent matter is an offence which shall be punishable in accordance with law and makes no exception in regard to the publication of indecent matter merely because it may be the publication of the report of proceedings in court.

Professor Stanford

There is, then, a law dealing with this already?

Mr. Lavery

The Senator has not followed me.

Professor Stanford

Perhaps my thoughts were moving in a different direction.

Mr. Lavery

"The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law." This is the law, or will be the law, if passed.

Professor Stanford

Might I ask if there is then no such law capable of dealing with this?

Mr. Lavery

There is no such positive enactment, but the reason for that is this, that, whether we acted wisely or not, in this State we have from its institution adopted a written Constitution. The Constitution enacted in 1922 contented itself with what is usual in Constitutions, which are to be regarded as the fundamental law, with more or less general statements. We, or the people, enacted in 1937 a Constitution of a different character. It has caused many difficulties in the past and no doubt will cause many difficulties in the future, by reason of what some people think the unnecessary detail with which it hung around the neck of the State a series of positive provisions, not to be altered by ordinary legislation and which may prove unsuitable in varying conditions. One example — it may have been a good thing or a bad thing — is that the right of freedom of association was declared in such detailed terms that the Trade Union Act of 1941 which was considered, by some, at any rate, to mark an advance in collective bargaining and social organisation was declared unconstitutional by the Supreme Court. However, that is by the way.

Mr. Hearne

While the provision was declared unconstitutional, there is the remedy for any big volume of opinion in the country, to amend the Constitution.

Mr. Lavery

The Senator is, of course, perfectly right.

Mr. Hearne

It is not sacrosanct.

Mr. Lavery

It is sacrosanct, but the idol can be destroyed by the vote of the people. The Senator will agree that a referendum on a matter of detailed legislation is not always desirable, or perhaps even possible.

Mr. Hearne

I agree. I raised this interesting point — the Chair will agree that the House is rather informal — that it might, indeed, in the case of the Trade Union Bill, be very desirable that the provisions of the Constitution, in so far as the Trade Union Act was repugnant——

Mr. Lavery

The Senator is perfectly right. I agree with Senator Hearne that the Constitution can be altered by a referendum. I am pointing out that it is so detailed that without having resort to getting the opinion of the people by a referendum, it remains rigid to that extent. However, my main point is that we have a written Constitution. Therefore, we must find all the powers of the courts and the various organs of the State in the Constitution, or in positive law. Though we have taken over the body of the common law, if you find a provision of the Constitution such as I have just been quoting, it is not easy to contend that general powers which the courts previously exercised are still in force and have survived positive provisions of the Constitution. It was claimed that the courts had at common law an inherent power to hear proceedings in camera, but the old idea, and perhaps the best idea of the organisation of the courts, was that the judge in his court, so far as the proceedings in his court were concerned, was more or less supreme and the court had an inherent jurisdiction not dependent on any positive enactment. That is what made it so difficult to answer the question which Senator Stanford asked of the Minister for Justice. It is not so easy to say whether the inherent power to hear in camera survived the positive provision of a Constitution that justice should be administered in public save in limited cases to be provided by law. We have to take a “hould” of that — if I may use language similar to that used by the Minister for Agriculture.

A Senator

No.

Mr. Hearne

It would not suit you.

Mr. Lavery

I have to apologise for that informal phrase. We have to make positive enactments. When we come to consider Section 15 of the Bill, I am quite certain that the House will hear from Senator Stanford and other Senators a full discussion on the rights and wrongs of this. Perhaps I have said enough—perhaps I have said too much, — to justify the principle of the section.

Senator Stanford referred to the fact that in England there are positive enactments of this kind. The Judicial Proceedings Act of 1926 made specific provision that in certain types of cases only particulars of the parties should be given and that reports should not be published. Therefore, we are not doing here an unprecedented thing. I have never cared myself to resort to quotations of what is done in England as if to prove that what is done there must be right here. However, some people like that method of approach and, if I can gain adherents by adopting it, well and good. Sometimes we find the same idea in the courts, where decisions of English courts are quoted to the judges, even recent decisions, as if they were binding authorities. We can get a great deal of guidance from practice in England in matters which we have to consider here where conditions are similar and where they have found, with experience, that certain provisions are necessary, and get help and assistance from seeing what they have done. There are other conditions applicable both in England and here by way of positive enactment. For instance, the Incest Act of 1908. That is the law in this country as well as in Great Britain. The statute was passed in 1908 and, under Section 5 of that Act, it is enacted that proceedings should be held in camera. I would refer the House to another English Act which was passed in the year 1933 — The Young Persons Act. It dealt with children's courts and with proceedings against children and matters of that kind. It provided that certain types of proceedings should be held in camera. It provided an exception for the attendance of bona fide members of the Press at such proceedings, as does the Courts of Justice Act, 1936, which also has a provision relating to the hearing of proceedings in camera. While that Act provided an exception for members of the Press, it was careful to add that this particular provision was without prejudice to any other power the court might have to take proceedings in camera, in which case, if that general power were exercised, the Press, like everybody else, would be excluded. Perhaps these are matters of too great detail. I have referred to the Courts of Justice Act, 1936. I think Section 37 of that Act provides for the exclusion of members of the public but contains an exception for members of the Press in certain types of cases at the discretion of the court.

I should refer also to a very relevant provision in the much-abused Censorship of Publications Act, 1929. Section 14 of that Act reads as follows:

"(1) It shall not be lawful to print or publish or cause or procure to be printed or published in relation to any judicial proceedings:—

(a) any indecent matter the publication of which would be calculated to injure public morals, or

(b) any indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals.

(2) It shall not be lawful to print or publish or cause or procure to be printed or published any report, statement, commentary or other matter of or in relation to any judicial proceedings for divorce, nullity of marriage, judicial separation, or restitution of conjugal rights save and except all or any of the following particulars of such proceedings so far as the same can be printed and published without contravening any other sub-section of this section..."

It goes on to set out in much the same terms as the British Act of 1926 — that the information to be published shall be limited to the names, addresses and occupations of the parties and witnesses, and so forth, with the charge and summing up and the decision. It will be seen that the present position is not, therefore, so revolutionary and that there are positive precedents in this country and outside. It is still clear that while this section, or something like it, ought to be passed, it is a matter requiring careful consideration by this House.

Professor O'Brien

I feel a certain difficulty in following the Attorney-General. The case in favour of Section 15 could not have been made more ably than it has been made by the Attorney-General and yet there are still certain doubts in my mind in so far as its constitutionality is concerned. The Attorney-General told us that this is a Bill which will apply to all courts. I would draw attention to what I would regard as a lack of definition of "court". Until we reach Section 18 there is no definition of "court". In Section 18 (5) we read:—

"In this section ‘court' does not include courtmartial."

As the only type of court which is mentioned in any detail throughout the Bill is the District Court I must confess that I read the Bill as applying to District Courts in particular although I accept the Attorney-General's assurance that it applies to courts in general. I suggest it does not appear on the face of the Bill that it applies to courts in general. As a person brought up in the legal tradition, my feeling is that the Bill is a move away from trial by jury to trial by stipendiary magistrates, and though Section 1 is hedged around with a great many safeguards, I think this is a step in the wrong direction, which should be carefully scrutinised from the point of view of the liberty of the individual.

The Attorney-General has made certain observations regarding the relationship between the Constitution and laws made under it. If a country elects to have a written Constitution, then, without going so far as to say that that Constitution is sacrosanct, I say it should be treated with very great respect and should not be altered except under stress of exceptional circumstances and with very full realisation of the fact that it is being altered. I do not suggest that any Constitution is of such sacrosanctity that it never should be altered and never could be. There is a growing opinion amongst lawyers and students of politics that, in the modern world, written Constitutions are necessary to safeguard individuals against bureaucracy and totalitarianism. Many people believe that the American Constitution, with all its checks and balances, does ensure to the American public certain safeguards not ensured to the citizens of the United Kingdom where Parliament is able, by a simple majority, to alter and define the rights of the subject. Therefore, every line of our written Constitution is important from the point of view of the citizen, and it is the duty of this House, the Second Chamber, very carefully to scrutinise any attempt to alter this Constitution — as, I suggest, certain sections of this Bill attempt to do.

I wish to call attention to the power contained in Section 1 (1) (b), whereby the list of offences which can be tried summarily may be added to, subject to the consent of the Dáil and Seanad. I accept that that means it cannot be done in an underhand way. At the same time, I incline to the feeling that, if indictable offences are to be subject to summary jurisdiction, the most solemn procedure should be followed, and that even an Order of the Minister for Justice with the assent of the Dáil and Seanad might not be as satisfactory as if the additional offences were introduced in a special Bill, like this one, and fully debated in both Houses.

In regard to Section 1 (2) (a) (ii), providing for the consent of the accused, there ought to be some provision to make it perfectly clear that the rights of the accused are fully explained to him before getting that consent. The ordinary persons charged are often ignorant and poor people, very frightened of the whole procedure, and they may quite easily give their consent without realising the full implications of abandoning their constitutional rights to trial by jury, with all the numerous safeguards that such a trial affords. Therefore, I think something might be added to that clause, to ensure that it will be fully explained to the accused that he is completely free not to give his consent if he does not desire to do so.

On Section 15, the major questions of constitutional importance are raised. I am not considering this question as the Attorney-General suggested from the point of view of the Press, and still less from the point of view of the curiosity of the public, but from the point of view of the district justice, and above all, the safeguarding of accused persons, whose interest must come first in any discussion on criminal procedure. One thing which is clear at present is that justice administered behind closed doors is subject to the greatest dangers. If our Constitution provides in Article 34 that justice shall be administered in open court, that is a right that ought to be abrogated only with the clearest realisation of what the Oireachtas is doing. I am aware of the disadvantages of publicity in the case of certain offences, such as indecency. Everyone agrees that they should not be reported in the newspapers and most people agree that the public should be excluded from court.

It seems to me that two things are involved in Section 15 which up to this have been discussed as if they were in some way interchangeable. One is the exclusion of the public from the court and the other is the reporting of the proceedings in the Press. They are two different things, covering vitally different problems. The Attorney-General has already explained that Article 34 has already been amended. He has himself cited cases where a certain amount of publicity would do untold harm. Therefore, this amendment of the Constitution: "Save in such special and limited cases as may be prescribed by law" is one with which everyone agrees. But what layman — and, still more, what lawyer — looking at the accompanying provisions of Section 15: "In any criminal proceedings, the court may ... exclude the public or any particular portion of the public" and may prohibit publication in the Press — could argue that, if the section says "any" court, without any limitation whatsoever, that can be fitted into the clause of the Constitution which says "save in such special and limited cases"?

The Attorney-General has referred to Article 40 (6) 1º of the Constitution, which brings out a point I made a moment ago. It deals with the question of the right of citizens to express their convictions and opinions freely and goes on to deal with the Press and the cinema. There is nothing whatever there dealing with the exclusion of the public from legal proceedings. I think that is very important. There is a large range of cases where it is desirable that the proceedings should not be reported in the Press, but where it is not desirable that the public should be excluded. Reporting in the Press is one thing: the presence of a small section of the public is another. No court of ours can hold more than a certain number of people and if even a small section of the public is able to be present during the public administration of justice, abuses and injustices are very largely prevented. Reporting in the evening papers of criminal cases, where every child can read about them, is a totally different proposition. Therefore, in so far as Article 40 (6) could be read as interpreting Article 34, it only refers, it seems to me, to publication in the Press and does not bear in any way on the exclusion of the public from court, which is a more serious infringement of the rights of the individual.

There is a distinction which is not in the Bill and which, if made in the Bill, may do something to meet some of our objections. That is, the distinction between the reporting of preliminary proceedings leading to further proceedings, and the reporting of the final proceedings. We all know that there is this controversy about the wisdom of reporting in the Press the preliminary proceedings of murder cases which attract considerable public attention.

There is a case being tried in England at the moment and there is a considerable controversy as to whether the preliminary proceedings of that case should have been as fully reported in the Press. We know that in these instances the case for the prosecution is given very fully, while there are no arguments put forward for the defence, which is reserved. When widespread publicity is given, it is suggested that a juryman, no matter how he tries, cannot clear his mind of bias, prejudice and foreknowledge. This case may be somewhat exaggerated. Personally, I think the more publicity the better, but I can see that there may be a case for doing something like this — while not closing the court to the general public, where only a small section can get in, to prohibit the full report of the proceedings of a preliminary investigation before a district justice, where only one side, as a rule, is presented and the defence is reserved, without the case for the defendant being put. There might be something to be said for that, and it would be within Article 34 of the Constitution clearly as one of those special cases, where special legislation would be justified to limit the Press in some way to reporting the result of such a case, saying that such and such a person was returned for trial, without giving any details regarding the offence.

It is a simple thing in the matter of publication in a case that is going for trial and the jury would then come to the box with an open mind not having heard anything of the case except what they would hear in the course of the evidence for the first time. I can see something in that but that is an entirely different thing from prohibiting publication and excluding the public from the courts at trials. It is to my mind a very extreme measure which requires very extreme justification. It seems to me that the onus of proof for the necessity for such exclusion of the Press or the public is one that must rest on the Government and that is a very difficult onus, so far as I am concerned, to discharge. I can give an example of my own knowledge of a case where a full newspaper report of the proceedings in a case saved a man who would have been hanged. But, the publication of the facts at the trial brought forward an essential witness to support that man's alibi. It was a case of a shooting in Mount Street where the accused before the courtsmartial tried to establish an alibi but he was laughed at by the court because his alibi was of the usual type which did not arouse much credence.

He had tried to prove that at the time of the shooting he was away in another district so that he could not have been near the scene of the shooting. The point was that in order to prove that he had been elsewhere he told of having seen "an ould one" on an aeroplane in Merrion Square. That was laughed at at the time, but following the publication of the facts in the papers a lady wrote to the prisoner's solicitor and said that at that time she was practising on a motor-scooter in Merrion Square and she might answer to the description given by the man in his evidence. She came forward and established the man's alibi and that man, who would certainly have been hanged, is still alive and flourishing to-day. His life was saved by the publication of that Press report of the case. Since then I have always been impressed with the importance of giving the fullest possible publicity to all cases and certainly in the matter of political cases. I am certainly in favour of even a limited report in the case of preliminary proceedings in indictable offences.

I certainly think, however, that any attempts to suppress reports of non-indictable offences or proceedings in the police courts when there is no further trial and the exclusion of the public in such circumstances is wholly and constitutionally wrong. I think the objection may be, to some extent, met by the provision of some appeal from the decision of district justices. It seems to me that in this measure we are giving the district justices who, though they are very worthy people, are the lowest rung in the judicial ladder, wide powers to cover an enlarged range of indictable offences. In giving them the additional power to exclude the Press you are giving the justices a great deal of power over the liberty of the individual citizen. It seems to me that at the present time, when liberty is being threatened on all sides everywhere, that this Bill does greatly extend powers of district justices, and should therefore be jealously scrutinised by the Seanad.

I would further like to draw the attention of the Minister to Section 18 (3).

Section 13 (6) of the Constitution provides:—

"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."

Section 18 (3) of the Bill provides:—

"The Government may delegate to any other authority any power conferred by this section and may revoke any such delegation."

That seems to be a very wide delegation. The statute may enlarge those powers of pardon contained in the Constitution, but is it within the spirit or the letter of the Constitution? Would this statute be supported if it were seriously questioned? Has the Oireachtas the right to extend these powers not only to the Government but to any other person to whom the Government delegates them? We have the Latin axiom delegatus non potest delegare.

I call the attention of the Minister and the Attorney-General to the far-reaching nature of this provision. These are very wide powers to give and I feel that they affect the liberty, possibly, of every citizen.

Mr. J.T. O'Farrell

Although this Bill is composed of 21 sections and two Schedules, the great bulk of discussion centres on Section 15, and on the question of publicity. A great deal could be said on that from both points of view, but I do not think that the operation of the section will make any material difference in existing practice, first because of the type of court and, secondly, because of the reasonably high standard observed by our newspapers. It could, of course, operate in a very obnoxious way at times of high political tension, because the question of what is public morality might be interpreted in what might be rather a strained way by judges or justices at such times. It might appear appropriate to a judge in such circumstances to prohibit publication of a trial of a number of people charged with political offences of a particular character, or there might be some notable politician favourable to the Government of the day, or the reverse, involved in cases in which publicity would not be desired.

I know that these are, probably, extreme cases, but they are really the only dangerous circumstances in which this section might operate. On the whole, if it were practicable to define the type of case in which this power might be exercised, it would be better. I agree to a great extent with Senators who argue that these powers are rather too wide to give justices and judges to apply in any particular case, and the Minister might consider whether it would not be possible to add to the cases already provided for whatever cases they have in mind.

It would seem to be easier to discuss this Bill if it were divided into two Bills. The first three sections and the First Schedule appear to me to constitute a distinct Bill dealing with the administration of criminal justice, while the other is a sort of omnibus Bill affecting Acts involved in criminal justice. I heartily approve of the first three sections, because they tend to simplify and to speed up the administration of justice in criminal cases. I imagine that one of the most terrible prospects of any accused is the time and money involved during the protracted period occupied in taking depositions in indictable offences. In some cases these are spread over months, with numerous adjournments. All those who are accused are not guilty people. They may eventually vindicate their characters at a price which leaves them in bankruptcy. During all the time they are under the shadow of a terrible cloud, with their whole material and spiritual prospects in peril. Anything that would tend to speed up business — that would be in the interests of the accused.

Those of us who have sat on criminal juries have often been puzzled at the necessity for certain evidence adduced on behalf of the State. I suppose the police authorities are going on some ancient formula, but to my knowledge days have been taken hearing evidence from witnesses to which, as a juryman, I could attach no particular importance or significance, nor did the judge draw attention to any particular importance in it. However, the formulæ has to be complied with, and the unfortunate accused is the victim. If eventually he proves that he is not guilty, he has no redress in law by way of damages. He has to pay for the mistake that was made in charging him in the first instance. Even if he was guilty, I suggest we should not try to punish him financially, by ruining him in his fortune as well as in his person.

To the extent that this Bill gives an opportunity to avoid a double trial in indictable offences, it is in the interests of justice, and certainly a merciful act towards the accused, whether he be innocent or guilty. Unquestionably it is a big responsibility for the District Court in which district justices are, I think, in nearly all cases, solicitors.

General MacEoin

No.

Mr. J.T. O'Farrell

I thought they were. To the extent that they are solicitors, they would not have quite the same qualifications perhaps for acting as justices as counsel would. I may be wrong there but, at all events, they would not have had the same experience of indictable offences as judges, except to the extent that they have to take depositions. Of course, prisoners are protected to the extent that one could protect them. I presume that before a prisoner is asked to opt for summary jurisdiction, the court will ensure that he has had legal advice. In some cases prisoners are not able to provide that advice. I take it that in such cases it would be provided, and that the court would be assured that a prisoner had legal advice before he opted for trial at a District Court.

There is a further provision, that if there are two serious offences, one in which a year's sentence would not be enough, the Attorney-General could prevent the accused being tried by summary jurisdiction, seeing that the maximum sentence would not fit such trial if the accused was found guilty. Taken on the whole, these two sections are a very valuable contribution to the speeding up of justice and, as far as the other portions of the Bill are concerned, they are technical and involve a big principle. I agree with other Senators that this Bill could best be discussed in detail on Committee Stage.

General MacEoin

I am very grateful to Senators for the manner in which they received this Bill. The object was to simplify the law in certain cases and, I think, adequate precautions are taken to protect the interests of accused persons. It has been the practice, where a person was inclined to plead guilty too quickly, for the district justice to become his advocate. I am fully satisfied that the interests of the accused are protected.

I do not know that there is any great need for me to go into any of the points which have been raised. The Attorney-General, who is an expert on the matter has dealt with some of the questions raised, particularly that raised by Senator Stanford. I did not like to say too definitely that this power already existed, but I am perfectly satisfied that the power is there. As has been said by the Attorney-General, the power is vested in the courts to judge whether it is in the best interests of the community to hear a case in camera or not or have it published or not. This Bill gives specific power to carry that on. It is not new. It is in the Act of 1929 of the Oireachtas and it is in the Judicial Proceedings Act of 1926.

Professor Stanford

The power to prohibit publication?

General MacEoin

Yes. In the Judicial Proceedings (Regulation of Reports) Act, 1926, of the General Acts of the British House of Commons there is the clause:—

"Be it enacted by the King's Most Excellent Majesty, etc. It shall not be lawful to print or publish or cause or procure to be printed or published A. in relation to judicial proceedings any indecent matter or indecent medical matter, etc."

Professor Stanford

That is a different power. It does not give the courts power to rule on a particular case that something is not to be published.

General MacEoin

Who is to decide it?

Professor Stanford

That is the whole question.

General MacEoin

It would be like hanging a fellow first and then finding if he was guilty. The power is inherent in the court, but, however, I leave that to be argued in Committee. I hope that the Seanad will be as reasonably disposed on the Committee Stage as it is on this stage. I do not know that there is very much I can say on the matter that would be useful. In my opinion it is very important that these long delays should be avoided. When I was here some time ago on the question of jurors I undertook to bring in a measure such as this to expedite the hearing of cases and relieve jurors from the pressure that is put upon them and I am fulfilling that promise to the Seanad. I am glad that I have been able to do so and trust that you will accept my efforts in the most sympathetic way possible.

Question put and agreed to.

Ordered: That the Committee Stage be taken on October 5th, 1949, the first meeting of the Seanad after the Recess.